Hosie v. Omni Hotels Management Corporation

THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
ASHEVILLE DIVISION
CIVIL CASE NO. 1:22-cv-00265-MR-WCM
DEANA HOSIE, )
)
Plaintiff, )
)
vs. ) MEMORANDUM OF
) DECISION AND ORDER
)
OMNI HOTELS MANAGEMENT )
CORPORATION, )
)
Defendant. )
_______________________________ )
THIS MATTER is before the Court on the Plaintiff’s Motion to Exclude
Expert Testimony [Doc. 41].
I. PROCEDURAL BACKGROUND
On November 30, 2022, the Plaintiff Deana Hosie (“Plaintiff”) filed this
action in Buncombe County Superior Court against the Defendant Omni
Hotels Management Corporation (“Defendant”).1 [Doc. 1-1]. The
Defendant removed the action to this Court on December 21, 2022, based
1 The Court notes that the Plaintiff initially filed this case in Buncombe County Superior
Court in November 2020, and the Defendant removed the case to this Court in
December 2020. Hosie v. Omni Hotels Mgmt. Corp., 2021 WL 5826787, at *1
(W.D.N.C. Dec. 8, 2021). On December 8, 2021, this Court dismissed the Plaintiff’s
case without prejudice when the Plaintiff failed to comply with discovery deadlines. Id.
at *1, *4.
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on diversity jurisdiction pursuant to 28 U.S.C. §§ 1332, 1441(b), and 1446.
[Doc. 1].
In her Complaint, the Plaintiff alleges that, on November 17, 2017,
while dining at the Defendant’s hotel restaurant, she tripped and fell over a
box-shaped object on the floor, causing her serious injuries. [Doc. 1-1].
On December 27, 2022, the Defendant filed an Answer and Affirmative
Defenses to the Plaintiff’s Complaint. [Doc. 3].
On August 9, 2023, the Pretrial Order and Case Management Plan
was entered in this case, which, among other things, set the deadlines for
the disclosure of the Plaintiff’s and the Defendant’s expert reports. [Doc.
21 at 4]. The original deadlines for the Plaintiff’s and the Defendant’s
expert reports were December 4, 2023, and January 8, 2024, respectively.
[Id.]. On December 4, 2023, the Plaintiff served her expert witness
disclosure on the Defendant, indicating she had not retained a consulting
expert or an expert witness. [Doc. 47-2: Plaintiff’s Disclosure Regarding
Medical Experts at 1]. Rather, the Plaintiff made clear that she only
intended to call her treating physician, Dr. David Lopez, who would testify
to the Plaintiff’s injuries and his medical assessment based on his training
and experience as a medical doctor. [Id.]. The Plaintiff did not provide an
expert report for Dr. Lopez. [Id.].
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On January 7, 2024, the day before the Defendant’s expert disclosure
deadline, the Defendant’s counsel asked the Plaintiff’s counsel when the
Plaintiff could be available for an independent medical examination. [Doc.
29-2: Scheduling Emails Attached to the Plaintiff’s Motion for Protective
Order at 5]. On January 8, 2024, the Defendant served its expert witness
disclosure on the Plaintiff. [Doc. 47-1: Defendant’s Expert Disclosure]. The
Defendant disclosed two experts: Douglas H. Hroback, P.E., an expert of
premises liability from Annapolis, Maryland, and Charles DePaolo, M.D.
(“Dr. DePaolo”), an orthopedic surgeon from Asheville, North Carolina. [Id.
at 1–2]. The Defendant included an expert report from Hroback but
indicated that Dr. DePaolo would not provide a report until “after his
forthcoming independent medical examination of [the] Plaintiff.” [Id. at 2].
The Plaintiff declined the Defendant’s request to undergo an
independent medical examination. [Doc. 47 at 3]. On March 1, 2024, the
Defendant filed a Motion to Compel an Independent Medical Examination
of the Plaintiff. [Doc. 31]. On April 18, 2024, the Magistrate Judge denied
the Defendant’s motion. [Doc. 38].
On June 13, 2024, the Plaintiff filed the present Motion, seeking to
exclude the expert testimony of Dr. DePaolo. [Doc. 41]. On June 27,
2024, the Defendant responded. [Doc. 47]. On July 5, 2024, the Plaintiff
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replied. [Doc. 50]. Having been fully briefed, this matter is ripe for
disposition.
II. DISCUSSION
Rule 26(a)(2) of the Federal Rules of Civil Procedure governs the
disclosure of expert testimony. Pursuant to this rule, a party wishing to rely
on an expert witness must disclose experts they intend to call at trial. Fed.
R. Civ. P. 26(a)(2)(A). If an expert witness is retained, disclosure must be
accompanied by a written report containing, among other things, the
witness’s opinions and “facts or data considered by the witness in forming”
those opinions. Fed. R. Civ. P. 26(a)(2)(B). “The purpose of Rule 26(a) is
to allow litigants ‘to adequately prepare their cases for trial and to avoid
unfair surprise.’” Bresler v. Wilmington Trust Co., 855 F.3d 178, 190 (4th
Cir. 2017) (quoting Russell v. Absolute Collection Servs., Inc., 763 F.3d
385, 396 (4th Cir. 2014)).
If a party fails to comply with Rule 26(a), the party cannot use that
evidence unless the failure was substantially justified or harmless. Fed. R.
Civ. P. 37(c)(1). “[T]he ‘automatic sanction’ of exclusion ‘provides a strong
inducement for disclosure of material that the disclosing party would expect
to use as evidence.’” S. States Rack & Fixture, Inc. v. Sherwin-Williams
Co., 318 F.3d 592, 595 n.2 (4th Cir. 2003) (quoting Fed. R. Civ. P. 37(c)
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advisory committee note (1993)). Determining whether a failure to disclose
is substantially justified or harmless is a matter within the Court’s “broad
discretion.” Id. at 597.
Here, the Defendant retained Dr. DePaolo to offer testimony
regarding the “Plaintiff’s past, present, and future medical condition,
including . . . whether such pain or limitation is connected to the injuries”
the Plaintiff suffered in this case. [Doc. 47-1: Defendant’s Expert
Disclosure at 2–3]. Thus, the Defendant was required to produce a report.
See Fed. R. Civ. P. 26(a)(2)(B). When the deadline passed on January 8,
2024, no report was forthcoming. Accordingly, Dr. DePaolo will be
excluded unless the Defendant can show that the failure to produce a
report was substantially justified or harmless. See Fed. R. Civ. P. 37(c)(1).
First, the Defendant argues that its nondisclosure was substantially
justified because the Plaintiff did not provide an expert report for the
Defendant to respond to. [Doc. 47 at 5]. A party, however, need not file an
expert report for a treating physician. See Fed. R. Civ. P. 26(a)(2) advisory
committee note (1993) (“A treating physician . . . can be deposed or called
to testify at trial without any requirement for a written report.”); see also
Drennan v. United States, 375 Fed. Appx. 299, 306–07 (4th Cir. 2010)
(unpublished) (citing the advisory committee note to Rule 26(a)(2)). Here,
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the Plaintiff disclosed that her treating physician would testify at trial. [Doc.
47-2: Plaintiff’s Expert Disclosure at 1–2]. Thus, the Plaintiff did not need
to disclose an expert report, and the Defendant was not substantially
justified in failing to disclose its own expert report. See Fed. R. Civ. P.
26(a)(2) advisory committee note (1993).
Second, the Defendant asserts that its nondisclosure was
substantially justified because Dr. DePaolo needed to conduct a medical
examination of the Plaintiff, arguing that a review of the Plaintiff’s medical
records “did not provide a sufficient basis for him to serve a report that
would satisfy Rule 26(a)(2)(C).” [Doc. 47 at 5]. In his Order denying the
Defendant’s motion to compel an independent medical examination, the
Magistrate Judge emphasized the Defendant’s failure to (1) timely and
adequately pursue the Plaintiff’s medical records; (2) provide an expert
report from Dr. DePaolo; (3) seek an extension of its deadline to disclose
Dr. DePaolo’s report; and (4) move to compel an independent medical
examination until March 1, 2024, nearly two months after the Defendant’s
expert disclosure deadline. [Doc. 38 at 10–11]. Further, since the
Magistrate Judge entered his order denying the Defendant’s motion to
compel in April, the Defendant has not supplemented or corrected its initial
expert disclosure. See Fed. R. Civ. P. 26(e)(1)(A). Accordingly, the
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Defendant’s failure to disclose a report from Dr. DePaolo is not
substantially justified due to the lack of an independent medical
examination.
Next, the Defendant argues that allowing Dr. DePaolo to testify would
be harmless to the Plaintiff. District courts may consider several factors
when determining whether a failure to disclose is harmless, including
surprise to the opposing party, the ability to cure that surprise, disruption of
the trial, and “the importance of the evidence.” S. States Rack & Fixture,
318 F.3d at 597. The Defendant claims that the Court can “cure” any
surprise caused by the Defendant’s failure to provide a report by permitting
Dr. DePaolo to listen to and “rebut” the Plaintiff’s treating physician’s trial
testimony, then briefly pausing the trial to allow the Plaintiff time to
formulate a cross examination. [Doc. 47 at 7–11]. The Defendant’s
proposed solution, however, would entirely defeat the purpose of Rule 26.
See Bresler, 855 F.3d at 190. The Defendant’s proposal would minimize
the Plaintiff’s opportunity to “adequately prepare” for Dr. DePaolo’s
testimony, leaving the Plaintiff surprised and unequipped to conduct a
sufficient cross-examination. See id.; see also S. States Rack & Fixture,
318 F.3d at 597. This would not be harmless to the Plaintiff; it would
disrupt the trial and unfairly surprise the Plaintiff without providing a
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sufficient cure. The Defendant does not explain why Dr. DePaolo would be
unable to assist defense counsel in formulating an adequate cross
examination of Plaintiff’s treating physician.
Finally, the Defendant argues it is important for Dr. DePaolo to testify
to give the jury “a more complete understanding of [the] Plaintiff’s injuries”
and for the Defendant to “more fairly defend itself against [the] Plaintiff’s
claim for significant damages.” [Doc. 47 at 9–11]. In so arguing, the
Defendant lists the Plaintiff’s injuries and damages claims. [Id.]. This,
however, is precisely the kind of information that Dr. DePaolo could have
and should have rebutted in an expert report. The Defendant has had the
Plaintiff’s medical records and has known of the Plaintiff’s claims for
damages for some time. The fact that the Defendant has failed to provide
a timely rebuttal to the Plaintiff’s evidence does not justify an ambush of the
Plaintiff’s treating physician at trial.
In sum, the Defendant’s failure to provide a report from its expert is
not substantially justified. Furthermore, disrupting the trial to formulate an
expert opinion on the fly—without giving the Plaintiff time to analyze the
expert’s opinion, depose the expert, and prepare a cross examination—
would not be harmless. For these reasons, the Plaintiff’s motion to exclude
Dr. DePaolo’s testimony is granted.
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IT IS, THEREFORE, ORDERED that the Plaintiff’s Motion to Exclude
Expert Testimony [Doc. 41] is GRANTED.
IT IS SO ORDERED.
Signed: October 4, 2024
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